New GOP Head of Agency Says He Is Reviewing Material
By Stephen Barr
Washington Post Staff Writer
Washington Post Story
Wednesday, February 18, 2004;
A newly arrived Republican appointee has pulled references to sexual orientation discrimination off an agency Internet site where government employees can learn about their rights in the workplace.
The Web pages at the Office of Special Counsel, an independent agency whose mission is to protect whistleblowers and other federal employees from retribution, has removed references to sexual orientation from a discrimination complaint form, training slides, a brochure titled "Your Rights as a Federal Employee" and other documents.
Scott J. Bloch, the agency head, said he ordered the material removed because of uncertainty over whether a provision of civil service law applies to federal workers who claim unfair treatment because they are gay, bisexual or heterosexual.
"It is wrong to discriminate against any federal employee, or any employee, based on discrimination," Bloch said. But, he added, "it is wrong for me, as a federal government official, to extend my jurisdiction beyond what Congress gives me in the actual interpretation of the statutes."
At issue is the meaning of a few lines of a civil service law that bans discrimination against employees and job applicants "on the basis of conduct which does not adversely affect the performance of the employee or applicant."
Bloch said he took the references to sexual orientation bias off the agency Web site because he was not clear about the office's policy and legal interpretation of the provision. He said he did not think it appropriate to leave the references on the site -- "to have my stamp of approval" -- while he reviews the matter.
The provision usually has been interpreted to mean that a worker's off-duty behavior cannot be used as a justification for dismissal, demotion or discipline unless it hampers job performance or interferes with the work of others.
That has been the stance at the Office of Personnel Management, which oversees the government's workplace policies, for at least two decades. The OPM Web site continues to advise employees that bias based on sexual orientation is unlawful and informs them that complaints may be filed at the Office of Special Counsel.
Bloch, who assumed office last month following Senate confirmation, had served as deputy director and counsel to the Task Force for Faith-Based and Community Initiatives at the Justice Department. He was a partner in a law firm, specializing in civil rights and employment law, and has served as an adjunct professor at the University of Kansas School of Law.
Bloch said he did not clear his decision to alter the agency's Web site with the White House, which is caught up in a political debate on same-sex marriage.
The Human Rights Campaign, which lobbies Congress on gay rights, and Federal GLOBE, an umbrella organization for gay and bisexual employee support groups in agencies, faulted Bloch's decision to remove material from the Web site.
"Federal GLOBE decries this action by OSC as mere political pandering to the conservative right," the group said in a statement.
Colleen M. Kelley, president of the National Treasury Employees Union, said she was especially concerned because Bloch removed an agency news release posted last year describing an investigation at the Internal Revenue Service that found an IRS supervisor denied a job to an applicant because he was gay.
"Removal of this press release, in particular, seems to signal a deliberate decision to obscure the history of OSC's enforcement actions," Kelley said. Her union represents about 98,000 IRS workers.
As a general rule, most federal employees take complaints of sexual discrimination or harassment to the Equal Employment Opportunity Commission. During the Clinton administration, the Office of Special Counsel added sexual orientation discrimination to its list of prohibited personnel practices.
Elaine Kaplan, who served as the Clinton administration's special counsel, said references were added to complaint forms and training materials as part of an overhaul of the agency's information and outreach efforts.
"It seemed to us that this was well-established law," she said. "Part of the job of the agency is to educate employees about their rights."
Kaplan said the old Civil Service Commission issued a bulletin to agencies in 1973 stating that agencies could not declare a person unsuitable for employment merely because the person was gay or engaged in homosexual acts. Ten years later, she said, the assistant attorney general for the office of legal counsel at the Justice Department concluded federal employees, even those in law enforcement, could not be fired solely for being gay.
In 1998, President Bill Clinton issued an executive order, which President Bush has not rescinded, saying it is unlawful to discriminate against employees based on their sexual orientation, Kaplan said. The order focused attention on the need to provide greater education to employees, she said.
"It is a matter of great concern that -- as its first step -- the new leadership of OSC is sanitizing all of agency's public statements, including the complaint form and its educational materials for the purpose of removing references to sexual orientation discrimination," Kaplan said.